Prof. Young writes: > 1. I'm in the process (again) of trying to figure out how to pack a decent smattering of the basics into a Con Law I course. Perhaps the key to our difference is simply that I think there are so many other more fundamental things to try to cover in an introductory survey.
COMMENT: There is no question that there is a lot of constitutional law to cover in an "introductory survey" that customarily covers judicial review, federalism, and separation of powers cases. It is my belief (and I may be the only one who thinks this) that if I am correct about the Constitution's status as a federal treaty, constitutional law courses must be re-organized conceptually. It is not so much that the content will change dramatically. (After all, one of the claims that I make is that U.S. constitutional law is regional international law.) Think of judicial review in terms of the Supreme Court's authority as an regional international court's authority. Think about federalism in its original sense as a foedal relationship. Such a conceptual re-organization also globalizes the Constitution's understanding -- not an untimely or transient project. Prof. Young continues: > 2. You state as simple truths a number of points that are deeply controversial. For instance, a number of scholars think that federal courts have no power to apply CIL without authorization from the political branches, not that it just automatically binds U.S. courts. It's true that U.S. courts can't easily modify CIL (except that they can in the sense of establishing practice, just like any other pattern of official acts), but that's a separate question from whether it "binds" them. U.S. courts can apply French law, too (if, say, a contract calls for it), and they can't modify it, but they aren't "bound" by French law in any real sense. Likewise, I'm not sure what you mean by "reverse-Erie" analysis -- a concept that's muddy enough in its usual domestic context. I would think a state court would be just as free to ignore lower federal court interpretations of CIL as it is to ignore such interpretations of federal statutes or federal common law. Whether a state court could ignore a U.S. Supreme Court interpretation of CIL is a hard question that turns on whether you think CIL is somehow incorporated into federal law or possibly on more amorphous "one voice" concerns. Again, these are all complicated questions. COMMENT: Even the Supreme Court's recent federalism cases are highly controversial -- even within the Court given the repeated 5-4 decisions. Constitutional law professors still require the reading of these cases. Prof. Young continues: > Maybe your 1L's are a lot more together than mine are. But I'm still smarting from my attempt to teach the 11th Amendment in Con Law I a few years ago. COMMENT: You may have a very good point, but what I worry about is whether Con law profs are receptive to re-tooling their approach to teaching Con law. There appears to me to be such hostility towards international law that is based more on misconceptions about some of the most basic international legal precepts than on the merits or consequences of the application of international law to U.S. domestic affairs. I wonder if any of the old-timers on this listserv who embraced legal realism or critical legal studies as young Turks can offer any advice to those who would want to re-conceptualize constitutional law and its teaching. By the way, any suggestions as to what to call this new (yet originalist) approach to constitutional law? Internationalism? Constitution as Federal Treaty (CFT) Theory? My wife thinks it should be called the "Martian Theory." Francisco Forrest Martin
